Muhammed Lawal Shuaibu JCA
Habeeb Adewale Olumuyiwa Abiru JCA
Abdul-Azeez Waziri JCA
APPELLANTS
RESPONDENTS
APPEAL, CONSTITUTIONAL LAW, ELECTION, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE
On 25th day of February, 2023 the 7th Respondent herein conducted an election to the Ughelli North/Ughelli South/Udu Federal Constituency wherein the 1st Respondent was declared victorious. Appellants were dissatisfied with the return of the 1st Respondent and filed their petition on the 20th March, 2023 against the 1st Respondent and others at the lower tribunal.
In opposition, the Respondents filed their respective replies to the petition and thereafter, the Appellants applied for the issuance of pre-hearing session when the pleadings were closed. In the course of pre-hearing sessions, some pending applications were heard and granted while others were adjourned to a later date. And precisely on Wednesday, 14th June, 2023 the Appellants’ counsel who was present in the Court at the last adjourned date was absent in Court and the respective counsel for the Respondents applied for the dismissal of the petition under paragraph 18(11)(a) of the First Schedule to the Electoral Act 2022 which application was granted by the trial tribunal.
Subsequently, the Appellants vide a Motion on Notice filed on 15/6/2023 prayed the trial tribunal for an order setting aside the said decision and relisting the petition hitherto dismissed. After hearing parties on their respective affidavit evidence, the trial tribunal refused the application.
Dissatisfied with the decision of the tribunal above, the Appellants appealed to this Court.
Appeal dismissed
Whether the lower Court was justified in dismissing the Appellants’ application to set aside the order dismissing petition and relist the petition on the cause list?
First of all, the mode of challenging and impeaching the record of appeal is by a party challenging it to file an affidavit which must be served on the learned trial Judge or the registrar. See STATE V. AIBANGBE (1988) 3 NWLR (PRT 84) 548.
In CHIEF OF ARMY STAFF & ANOR V. ISAH (2017) LPELR – 41979 (CA), this Court has held that where a party alleges that the record of Court does not reflect the correct proceedings in Court, the party must impeach the record failure of which he cannot be heard to complain that the record does not reflect the proceeding of the Court. And since there is a presumption of regularity in favour of the record transmitted to this Court, the party contending that it is not a fair record of what happened at the lower Court has a duty to formally impeach same. Also in OJENGBEDE V. ESAN & ANOR (2001) 18 NWLR (PRT 746) 771, the apex Court was emphatic that the person asserting incorrect record of proceedings carries the burden of not only proving the incorrectness of the proceedings, he also must supply clearly what the proceedings actually ought to be. The 1st Respondent having failed to do the needful, cannot be heard to complain. – Per M. L. Shuaibu, JCA
The purpose of a Respondent’s notice on the other hand is that judgment or decision appealed against should be affirmed on grounds other than those relied upon by the Court below in reaching its decision appealed against. Thus, it is not an open cheque on which a Respondent’s counsel raise every contention he so wishes. The provisions of Order 9 Rules 2 and 3 of the Court of Appeal Rules 2021 provides as follows:
In the instant case, the ground upon which the 1st Respondent desires this Court to affirm the decision is that there was no valid application for issuance of pre-hearing whereas the appeal is solely predicated on the fact that the Appellants have not made out a case for relisting the appeal. I therefore, cannot but agree with the submission of counsel to the Appellants that the issue of validity or otherwise of application of pre-hearing can only suffice when the appeal is relisted. In other words, the ground for the Respondent’s notice was not relied upon by that Court. The notice of intention to contend cannot therefore be sustained where as in this case, the new contention is on fact not litigated or where it falls outside the case as pleaded by the parties. See LOPIN (NIG) LTD & ANOR V. WEMA BANK PLC (2010) LPELR – 4440 (CA) AMERICAN CYNAMIDE COMPANY V. VITALITY PHARMACEUTICLS LTD (1991) 2 NWLR (PRT 171) 15 AND ADELEKE V. OYO HOUSE OF ASSEMBLY (2006) 16 NWLR (PRT 1006) 608. – Per M. L. Shuaibu, JCA
The general principle is that once a Court delivers its decision, it does not have the power to set it aside except in very special circumstances. Put differently, the inherent jurisdiction of the Court set aside its own judgment or decision is limited to judgments or orders that are nullities. By and large, a Court has no power to set aside its judgment or decision without a statutory provision enabling it to do so. – Per M. L. Shuaibu, JCA
The provisions of paragraph 18 (12) and (13) of the First Schedule to the Electoral Act 2022 no doubt provided the window for Court or Tribunal to set aside its judgment or decision upon the Applicant satisfying the condition precedents stipulated therein as follows:
(12) Any judgment given under sub-paragraph (11) may be set aside upon an application made within seven days of the judgment (which shall not be extended) with an order as to costs of a sum not less than N20,000.00
(13) The application shall be accompanied by an undertaking to participate effectively in the pre-hearing session jointly signed by the applicant and the legal practitioner representing him. – Per M. L. Shuaibu, JCA
The law is settled that where a statute provides a particular procedure for doing a thing, there should be no other method of doing it. Thus, once there is a condition precedent to the exercise of the jurisdiction of the Court and there is non-compliance to that condition precedent as set out in the statute, the Court is divested of jurisdiction. See NWANKO & ORS V. YAR’ADUA & ANOR (2011) LPELR – 1973 CA. – Per M. L. Shuaibu, JCA
…the said Julius Akpovoka not being the Applicant who brought the motion to set aside the decision of the Tribunal or authorized by the 2nd Respondent could not legitimately sign an undertaking pursuant to Order 18 (13) of the Frist Schedule to the Electoral Act, 2022. – Per M. L. Shuaibu, JCA
Similarly, as with all instances of judicial discretion, the Court’s discretion to relist a petition must satisfy the concurrent requirements of what is judicial and judicious in order to avoid arbitrariness. See OLUSOGA V IKEJA ELECTRICITY DISTRIBUTION CO. (2022) LPELR — 59304 (CA). Furthermore, a party seeking the Court’s indulgence must place sufficient materials to enable it exercises its discretionary power in his favour. – Per M. L. Shuaibu, JCA
Paragraph 18 (11)(a) of the First Schedule to the Electoral Act, 2022. The Paragraph provides that if a party or his Legal Practitioner fails to attend the pre-hearing sessions or obey a scheduling or pre-hearing Order is substantially unprepared to participate in the session or fails to participate in good faith, the Tribunal or Court shall in the case of the petitioner, dismiss the petition. – Per H. A. O. Abiru, JCA
Paragraphs 18 (12) and (13) read that any judgment given under subparagraph (11) may be set aside upon an application made within seven days of the judgment (which shall not be extended) with an order as to costs of a sum not less than N20,000.00 and that the application shall be accompanied by an undertaking to participate effectively in the pre-hearing session jointly signed by the applicant and the Legal Practitioner representing him. – Per H. A. O. Abiru, JCA
Now the place of the concept of substantial compliance in our jurisprudence in determining the effect of non-compliance with the provision of a statute is not in doubt — Lamido Vs Federal Republic of Nigeria (2015) LPELR 40763(CA), Al-Usabs Ventures Ltd & Anor vs GT Bank Plc & Anor (2021) LPELR 55789(CA). However, it is not any how compliance with the provisions of a statute that constitutes substantial compliance. The Supreme Court in the case of Mekwunye Vs Imoukhuede (2019) 13 NWLR (Pt.1690); 439 at 472 D-F explained the point thus:
‘Substantial compliance means actual compliance in respect to the substance essential to every reasonable objective of the Statute. It means that a Court or Tribunal should determine whether the Statute has been followed sufficiently so as to carry out the intent for which it was adopted. The doctrine of substantial compliance permits the overlooking of technical failure that does not amount or constitute substantial deviation from the intendment of the statute. The question of what constitutes a material departure from statutory requirement, or the question of whether requirements been satisfied inevitably raises the question of decree. ”
This was a reiteration of similar statements earlier made by the Supreme Court in the case of Buhari Vs Independent National Electoral Commission (2008) LPELR 814(SC). – Per H. A. O. Abiru, JCA
A combined reading of the provisions of Paragraphs 18 (11), (12) and (13) of the First Schedule to the Electoral Act, 2022 shows that the request that the accompanying undertaking be signed by the person applying to relist the petition was made for a purpose. It was to give a commitment by such an applicant to participate in the prehearing session, should the petition be relisted. It is pure commonsense that such a commitment can only be given by the applicant himself or by someone authorised by him to give such commitment. The authority to sign such undertaking cannot be assumed. – Per H. A. O. Abiru, JCA
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